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234 F.

2d 710

Joaquin CASTAER, Debtor, Appellant,

Rafael MORA, Creditor, Appellee.
No. 5054.

United States Court of Appeals First Circuit.

July 6, 1956.

Jorge F. Romany, San Juan, Puerto Rico with whom Romany & Romany,
San Juan, Puerto Rico, was on brief, for appellant.
Anibal Padilla Ponce, Puerto Rico, for appellee.
Before MAGRUDER, Chief Judge, and BIGGS * and WOODBURY,
Circuit Judges.
BIGGS, Circuit Judge.

The appellant-bankrupt, Joaquin Castaer, filed a petition on November 1,

1949 for a real property arrangement pursuant to Chapter 12 of the Bankruptcy
Act, 11 U.S.C.A. 801 et seq. The case was duly referred to the Referee in
Bankruptcy. On February 27, 1950, the appellee-creditor, Rafael Mora, filed a
claim with the Referee secured by a mortgage on some 200 acres of land in
Puerto Rico to guarantee the payment of $15,200 by the bankrupt with interest
at 6%. The mortgage was duly registered. The bankrupt filed an objection to the
claim, asserting that no money was owed by him to Mora and that no
consideration had been given for the mortgage. On February 9, 1952, after a
hearing, the Referee found that the mortgage was valid, that the amount of
$15,200 had been given therefor, and allowed Mora's claim "as a secured claim
in the amount of $15,000.00 plus interest at 6% to the date of the filing of these
proceedings." This order was reviewed by the United States District Court for
the District of Puerto Rico and was affirmed.

On September 4, 1953, finding an arrangement under Chapter 12 to be

impossible, the Referee terminated those proceedings and adjudicated Castaer
a bankrupt. Various other steps were had in the proceedings which are not

pertinent here and need not be referred to. It is sufficient to state that the
Referee made an order on March 22, 1955, directing the land subject to the
mortgage to be sold at public sale on April 19, 1955, free and clear of all liens
and encumbrances, liens and encumbrances to attach to the proceeds of the sale
in their proper order or priority. On that day the bankrupt tendered to the trustee
the sum of $8,000 and made reference to collections and sums of money held
by the trustee from the sale of crops and other property of the bankrupt
amounting to approximately $9,500 more. It is not clear from the record as to
whether the bankrupt intended this as an offer to purchase the real estate
securing Mora's claim, or whether he intended to pay off Mora's secured claim.
It seems to have been the view of the bankrupt, however, that $17,500 had been
made available by him for one of the purposes indicated.

Also on April 19, 1955, Mora moved for a recomputation of principal and
interest on his secured claim. He asserted that the amount originally allowed
was erroneous in that the principal was understated by the sum of $200 and the
interest thereon was allowed only to November 1, 1949, the date of the filing of
the petition for a real property arrangement, instead of to the date of payment of
the claim. In an order issued on May 24, 1955, after due hearing, the Referee
adopted this view and allowed the amendment, settling Mora's claim "in the
amount of $15,200.00 as principal plus interest at 6% up to but not in excess of
$6,570.00 to the date of payment, plus $250.00 for attorneys fees and costs;
said claim to be allowed with a secured status." Mora's motion for
recomputation had concluded with these words: "[T]his creditor stands on his
rights as a secured creditor, ratifying his disposition to accept the security
(farm) in payment for his claim." The Referee, treating these words, quite
properly, as an offer and finding the amount of Mora's recomputed claim to be
in excess of the consideration proffered by the bankrupt, in the same order
directed the trustee to consider the sale to Mora as confirmed, unless the
bankrupt redeemed the property within ten days. The District Court reviewed
the Referee's order and affirmed. From that decision the bankrupt appeals.

Before proceeding to discuss the merits of the controversy, we state that the
proffer asserted by the bankrupt to have been made by him in the sum of
$17,500 was no offer to purchase the real estate secured by Mora's claim and
no offer to pay off Mora's claim. The bankrupt proposed to employ cash or
other assets in the bankruptcy estate either as an aid in paying off a secured
creditor or as the purchase price of real estate securing that creditor's claim. He
proposed doing this despite the fact that there were general creditors and,
apparently, unpaid tax claims. The bankrupt's proffer was properly disregarded
by the Referee. It was the trustee's duty to obtain the best price for all of the
assets of the bankruptcy estate and to hold those assets not subject to any lien

for the benefit of the general creditors. To permit a bankrupt to employ such
assets to recover a mortgaged property for his own benefit or to pay off a
mortgagee would be insupportable.

The substantial question presented by this appeal is whether, after a lapse of

three years, the Referee could validly recompute the amount of a secured claim,
allowing a larger amount.

First, it is clear that the Referee erred in his order of February 9, 1952 in that he
allowed a lower principal amount than that to which Mora was entitled and in
that he computed the interest on the claim secured by the mortgage only to the
date of the initiation of the real property arrangement proceedings, viz.,
November 1, 1949. The first error seems to have been a miscalculation in
arithmetic. The second error seems to have been a misunderstanding of the law.
Mortgagees are entitled to interest up to the date of payment where the
proceeds of the mortgaged property sold by the bankruptcy trustee are
sufficient to pay principal and interest. Coder v. Arts, 1909, 213 U.S. 223, 245,
29 S.Ct. 436, 53 L.Ed. 772; In re Macomb Trailer Coach, 6 Cir., 1952, 200 F.2d
611, certiorari denied sub nom. McInnis v. Weeks, 1953, 345 U.S. 958, 73
S.Ct. 940, 97 L.Ed. 1378; Kagan v. Industrial Washington Machine Corp., 1
Cir., 1950, 182 F.2d 139, 146. In making his order of May 24, 1955, the
Referee corrected his previous mistakes and confirmed the sale of the real
estate to Mora on the terms heretofore stated.

Did the Referee possess the power to make the corrections? We are convinced
that he did and we base our conclusions on several grounds. First, Section 2
sub. a(2) of the Bankruptcy Act, 11 U.S.C.A. 11 sub. a(2), provides that
courts of bankruptcy may "Allow claims, disallow claims, reconsider allowed
or disallowed claims, and allow or disallow them against bankrupt estates * *",
Section 38(6), 11 U.S.C.A. 66(6), where the order of reference has been a
general one, confers on a referee in bankruptcy the powers of a court of
bankruptcy. In re Gillespie Tire Co., D. C.S.C.1942, 54 F.Supp. 336. It should
be noted that the limitations upon the power of the referee, emphasized in
Chandler v. Perry, 5 Cir., 1934, 74 F.2d 371, were almost done away with by
the Chandler Act and that the referee is in substance the court. Donald v.
Bankers Life Co., 5 Cir., 1940, 107 F.2d 810. Section 2, sub. a(2) is rarely
referred to in respect to reconsideration of claims but it conferred ample
authority on the Referee in the instant case to reconsider and to allow Mora's
claim in the larger and correct amount.

Second, Section 57, sub. k, 11 U.S.C.A. 93, sub. k, authorized the Referee to
make the corrections in the instant case. Section 57, sub. k provides: "Claims

which have been allowed may be reconsidered for cause and reallowed or
rejected in whole or in part according to the equities of the case, before but not
after the estate has been closed." This is to be read in conjunction with General
Order 21(6), 11 U.S.C.A. following section 53, which states: "When the trustee
or any creditor or the bankrupt or debtor shall desire the reconsideration of any
claim allowed against the estate, he may apply by petition to the referee to
whom the case is referred for an order for such reconsideration, and thereupon
the referee shall make an order fixing a time for hearing the petition, of which
due notice shall be given by mail addressed to the creditor. At the time
appointed the referee shall take the examination of the creditor, and of any
witness that may be called by either party, and if it shall appear from such
examination that the claim ought to be expunged or diminished, the referee may
order accordingly."

It has been suggested that Section 57, sub. k and General Order 21(6) may not
be availed of by a creditor who seeks reconsideration of his own claim but may
be employed only by the trustee in bankruptcy or by a creditor who seeks reexamination of another creditor's claim already allowed by the referee to the
end that the claim may be reduced, expunged or denied priority. A statement to
that effect was made by the Circuit Court of Appeals for the Second Circuit in
In re Jayrose Millinery Co., 1937, 93 F.2d 471, 474-475. In the Jayrose case the
City of New York claimed priority for amounts due it by way of city taxes on
retail sales and priority was denied. Thereafter an application was made under
Section 57, sub. k for reconsideration by the referee. The referee reconsidered
the claim and again denied it priority. The district court affirmed the referee's
conclusion. The Circuit Court of Appeals stated [93 F.2d 474]: "A creditor
whose claim has been allowed for a smaller sum than claimed or with a denial
of an asserted priority cannot get a reconsideration under 57, sub. k. The
purpose of this section is to protect the estate against claims which have been
erroneously allowed; not to protect the creditor against partial disallowance."
No authority was cited for this proposition. The Court went on to say, however:
"This conclusion does not mean that the city was remediless * * *. Whatever
may be the rule in other circuits, it is settled here that referees have power to
grant rehearings even after the time for review of their orders by the District
Court has expired", citing In re Pottasch Bros. Co., 2 Cir., 1935, 79 F.2d 613,
101 A.L.R. 1182, written by Judge Learned Hand. The Court on the basis of the
Pottasch decision decided that the City of New York was entitled to the priority
claimed and itself made the necessary correction, stating that the court below
should itself have modified and corrected the referee's decision. We shall deal
in some detail with the ruling of the Pottasch case at a later point in this


The principle enunciated in the Jayrose decision in respect to Section 57, sub. k
finds little support in subsequent authority. While 2 Collier on Bankruptcy,1
para. 39.17 at pp. 1476-77, states: "The prevailing view seems to be that while
a referee may reconsider allowed claims at any time before the estate is closed,
a creditor is not entitled to such reconsideration if his claim is disallowed in
whole or in part, or if his asserted priority is denied.", there is cited as authority
for this proposition, in addition to the Jayrose case, only In re Gouse,
D.C.Pa.1934, 7 F.Supp. 106, and In re Tomlinson and Dye, Inc., D.C.Okl.1933,
3 F.Supp. 800-802. Collier draws a fine distinction between reconsideration of
disallowed claims and reconsideration of allowed claims, suggesting that
General Order 21(6) and Section 57, sub. k, look strongly toward authorizing
the referee to reconsider the latter but not the former. See 3 Collier, para. 57.23,
p. 304. But that authority goes on to say at the same page: "A recent case, [In re
Cury, D.C.Va.1940, 34 F.Supp. 526], however, has with some consistency
taken the contrary position and has held that the referee has the same power in
this respect as in other cases.", i. e., to reconsider an order allowing or
disallowing a claim on the same basis as any other order made by him. In our
opinion in the Cury case the court correctly held on the identical principle
stated in the Pottasch decision, that a referee in bankruptcy has the power on
reconsideration to correct an order adjudicating a claim.


One can readily perceive that the last sentence of General Order 21(6) was
intended to deal with the rejection or expunging of claims on rehearing and
from this, we think, has burgeoned the disastrous idea, cloudily advanced, that
Section 57, sub. k, and General Order 21(6) may be availed of only to reduce or
expunge claims on reconsideration or to deny priority thereto. The language of
the Section and of the General Order does not warrant such a restricted view.
The words employed in the Section and in the General Order permit a referee to
reconsider the claims which had been disallowed in whole or in part or denied
priority. There is no sound basis for a narrow construction of this remedial
section of the Act. In conclusion on this phase of the instant case, we state that
it must be borne in mind that Mora's claim was secured; and we find no
authority which suggests that a secured claim may not be reconsidered by a
referee if the facts warrant it. We point out parenthetically that, in respect to a
secured claim, the petition or motion for reconsideration cannot be
appropriately made by the trustee on behalf of the creditor.


Third and last, we are in complete agreement with what Judge Learned Hand
aptly said in the Pottasch decision in respect to the powers of a referee who acts
as a court and therefore has the same power as any other court to reconsider,
amend, or vacate an order. Judge Hand stated: "[I]f a referee is a court at all,
there is no warrant for saying because an appeal lies from his orders, that he

has not the ancient and elementary power to reconsider those orders, nor the
faintest reason why he should not do so. That power is of course limited in
duration when there are terms of court, but in bankruptcy there are none. * * *
Thus it seems to us a perversion * * * to seize upon the mere chance that
appeals from referees are called `reviews,' and use it to strip them of powers so
common and so necessary to the reasonable exercise of their jurisdiction. Why
it is desirable that their orders, ruat coelum, should be as immutable as the
Twelve Tables, once the ink is dry, we cannot understand. * * * We hold that a
referee has the same power over his orders as the District Judge has over his."
See 79 F.2d at pages 616-617.2

In the instant case the Referee saw fit to correct two palpable errors in his order
of February 9, 1952 allowing Mora's claim. We can perceive no reason why, in
common sense or justice, the Referee should not be permitted to correct these
mistakes. There has been no change of position and no one can be prejudiced by
the corrections. See generally 3 Collier on Bankruptcy, para. 57.23, at pp. 308310. The appeal is without merit. The order complained of is correct in all


We have dealt at length with the merits of the controversy in order to

demonstrate that the order appealed from was just and proper. But did Castaer
have the standing to appeal to this court or even to seek review in the court
below of the Referee's order of May 24, 1955 amending Mora's claim and
confirming the sale of the real estate to him? We think that he did not. As we
have stated Castaer proffered $8,000 plus the general assets of the bankruptcy
estate assets over which he had not the slightest control or right of
disposition either to pay off Mora's secured claim, or as the purchase price
of the real estate. Even if we assume that Castaer's proffer was intended by
him as a bid for the real estate we can perceive no basis on which the Referee
could treat it as a bid, even as an unsuccessful one.3 It therefore cannot be
asserted on any logical ground that Castaer lost a purchase by reason of the
order of the Referee of which he now complains. To permit an insolvent
bankrupt to unduly protract the settlement of his estate by useless appeals in his
own name cannot serve the ends of justice or the purposes of the Bankruptcy
Act. Castaer has not been aggrieved in any legal sense by the order of the
Referee and we can conceive of no theory which could afford him standing to
appeal to this court.


Accordingly, the appeal is dismissed.



Judge Biggs, a circuit judge of the Third Circuit, was designated to sit in the
Court of Appeals for the First Circuit by Mr. Chief Justice Warren

References to Collier throughout this opinion are to the 14th edition, 1941

In line with the view that the referee may reconsider an order adjudicating a
claim or the status of a claim, see In re Inland Gas Corp., 6 Cir., 1951, 187 F.2d
813, 816; McCallum v. Stem, 6 Cir., 1928, 23 F.2d 491, 492. Cf. Biggs v.
Mays, 8 Cir., 1942, 125 F.2d 693. See Pfister v. Northern Illinois Finance
Corp., 1942, 317 U.S. 144, 149, 63 S. Ct. 133, 87 L.Ed. 146, where a referee's
order fixing rental, granting a stay and directing a sale of real estate was held to
have been reconsidered properly by the referee where there had been no change
of position, citing Wayne United Gas Co. v. Owens-Illinois Glass Co., 1937,
300 U.S. 131, 137, 57 S.Ct. 382, 81 L.Ed. 557

A successful bidder deprived of his bid by a referee's order can maintain an

appeal in his own name and does not have to seek review in the name of the
trustee. See In re California Associated Products Co., 9 Cir., 1950, 183 F.2d
946. Such a position has a sound logical basis, for the trustee usually is in a
position adversary to that of the purchaser